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BARDNEY v. UNITED STATES

March 17, 1997

VICTOR M. BARDNEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is R. Eugene Pincham's ("Pincham") motion to vacate three orders entered by the court. For the reasons which ensue, the motion is denied.

 I.

 Regrettably, the instant motion forces the court to revisit the history of recalcitrance exhibited by Pincham. On August 14, 1996, Pincham filed on behalf of Victor M. Bardney a motion to vacate, set aside, or correct the conviction and sentence imposed by the court. Pincham filed the motion pursuant to 28 U.S.C. § 2255. Fifteen days later, on August 29, 1996, the court, sua sponte, ordered Pincham to respond in writing by September 13, 1996, to show cause why the court should not impose sanctions for various flaws in the motion (the "August order"). September 13th came and went, but Pincham never filed the court-ordered response. On October 11, 1996, after four weeks of waiting and in the absence of Pincham's response, the court issued an Opinion and Order imposing a $ 1,000 monetary sanction pursuant to Federal Rule of Civil Procedure 11 (the "October order"). The October order court gave Pincham fourteen days to pay the sanction amount, and granted him leave to amend the § 2255 petition. Again, the court waited for Pincham to comply. To this day, however, Pincham has neither paid the fine nor filed an amended petition on behalf of his incarcerated client. As a result of Pincham's continued silence and neglect, the court issued a third order, on December 11, 1996, requiring Pincham to appear on January 21, 1997, to show cause for his failure to comply with the previous orders of the court (the "December order").

 On January 21, 1997, more than five months after he filed the § 2255 petition, Pincham appeared before the court and filed a motion to vacate the court's earlier orders. Disregarding the self-serving recitation of his "legal-professional 45-year career" and his baseless claim that the court took part in attacks on his personal character, Pincham's motion contends that he "had no knowledge of and did not receive notice of the entry of" the three orders "until or after December 16, 1996." According to Pincham, the entry of the sanction order without Pincham's actual knowledge or notice of the entry of the August and October orders denied him the process afforded him by the Constitution. The court disagrees.

 II.

 At the outset, the court notes that Pincham's motion is devoid of citation to relevant legal or statutory authority; it even fails to cite to the rule upon which it is purportedly brought. In Doe, By and Through G.S. v. Johnson, 52 F.3d 1448, 1457 (7th Cir. 1995), the United States Court of Appeals for the Seventh Circuit stated, "A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits the point." A strict reading of Johnson would require the court to deny the motion outright without discussion of the arguments contained within it. However, the court declines the opportunity to do so, and instead will discuss Pincham's contentions within the context of the applicable procedural rules and laws.

 A. August and December Orders

 The court notes that both the August order, in which the court ordered Pincham to file a written response to show cause for why it should not sanction him, and the December order, in which the court ordered Pincham to appear before it, are mere scheduling orders, and are not properly the subject of motions to reconsider. The court issued the August order in compliance with Federal Rule of Civil Procedure 11, and Pincham has not supplied the court with any reasonable justification for vacating it. With regard to the December order, of which Pincham acknowledges receipt, the court notes that Pincham obeyed that order and appeared on January 21, 1997, at which time he filed the instant motion. Because Pincham has not given the court sufficient reason for vacating the August and December orders, the court denies the motion as to those two orders, noting that the elimination of those orders would have absolutely no effect. Those orders aside, the crux of Pincham's motion relates to the October order, in which the court imposed a monetary sanction upon Pincham.

 B. October Order

 1. Type and Standard Associated With Motion

 After the court entered the October order, Pincham had four options. Pincham could have filed a Rule 59(e) motion to alter or amend the court's sanction order, which is a "judgment" for purposes of Rules 54 and 59. Burda v. M. Ecker Co., 954 F.2d 434, 439 (7th Cir. 1992). Pincham did not do so, presumably because he "did not receive notice of it." Pincham could have also appealed the sanction order within thirty days after the date of its entry, see Fed. R. App. P. 4(a)(1), but did not because--again,the court surmises--he "did not receive notice of it." In addition, Pincham could have requested that the court reopen the appeal period, see Fed. R. App. P. 4(a)(6), but, for reasons not known to the court, Pincham neglected to make such a request.

 Thus, the remaining avenue for relief from the sanction order, a judgment, was to request that the court reconsider it. The court could do so pursuant to either its inherent authority, as recognized in Rule 54 and Akzo Coatings, Inc. v. Ainger Corp., 909 F. Supp. 1154, 1159 (N.D. Ind. 1995), or its authority pursuant to Rule 60(b).

 Rule 60(b) allows a court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding . . . ." Therefore, the Rule comes into play only if the court's sanction order can be termed a "final judgment," "final order," or "final proceeding." We know from Firstier Mortgage Co. v. Investors Mortgage Insur. Co., 498 U.S. 269, 275, 112 L. Ed. 2d 743, 111 S. Ct. 648 (1991), that a sanction order is not a final judgment, though it is "a judgment." Burda v. M. Ecker Co., 954 F.2d 434, 439 (7th Cir. 1992). However, the court concludes that its sanction order was a "final" one for purposes of Rule 60(b) because (1) the Rule 11 sanction order is a separate judicial unit from the merits of the underlying § 2255 petition, see Cassidy v. Cassidy, 950 F.2d 381, 382 (7th Cir. 1991), (2) the sanction order included the exact sanction amount, see Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341, 1342 (7th Cir. 1986), and (3) it was clear from the October order that the court intended the sanction order to be the final decision, TMF Tool Co., Inc. v. Muller, 913 F.2d 1185, 1189 (7th Cir. 1990). Thus, the arguments found within Pincham's motion must fit into one of the six bases for Rule 60(b) relief:

 
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

 Fed. R. Civ. P. 60(b). For purposes of the instant motion, the court will view Pincham's arguments as though brought under the first and sixth prongs.

 2. Contentions of Motion

 At the outset, the court notes that Pages Six through Twelve of the initial memorandum and Pages Six through Thirteen of the reply memorandum in support of the motion sub judice discuss either (1) Pincham's claimed expertise as an Illinois attorney, including Pincham's work as a state trial and appellate judge, (2) alleged "unwarranted personal attacks against Attorney Pincham" by the court, or (3) the substance of the underlying § 2255 petition. The court need not discuss the arguments found within those pages within this Section, as they bear no worth to the 60(b) determination. Save those pages, which the court ...


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